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State v Niubasaga [2013] FJMC 384; Criminal Case 298.2012 (23 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 298/12

BETWEEN:

THE STATE

AND:

SIKELI NIUBASAGA

Prosecution: Cpl Chinsamy
Accused: In Person

SENTENCE

1. Sikeli Niubasaga you pleaded guilty to theft contrary to section 291(1) of the Crimes Decree No. 44 of 2009.
   
2. You pleaded guilty voluntarily to the charge when it was read and explained. You also accepted the facts tendered by prosecution.
   
3. The Court is satisfied that your guilty plea is unequivocal and you are convicted as charged.
   
4. Between 10th October 2012 at 2pm and 22nd October 2012 at Burenitu Nalawa Ra you uprooted and stole cassava worth $450.00 the property of Mesulame Naqurawa 71yrs farmer of Burenitu Nalwa Ra. On 22nd October 2012 the complainant was checking his farm when he noted his cassava plantation being uprooted. He went to check another cassava planation when he saw you stealing cassava from that plantation and he chased you away. The matter was reported to police. You were arrested, cautioned interviewed and charged accordingly for the alleged offence.
   
5. You mitigated and I take the following in your favor:
   
   • First offender
   • Guilty plea albeit not an early plea.
   • Remorse and family background.
     
6. The following features I would regard as aggravating:
   
   • Benefit derived from the offence.
   • Breach of trust you've related to the complainant.
     
7. Theft under the Crimes Decree carries a maximum imprisonment term of 10 years.

The guideline in case authorities suggest that tariff for theft ranges from 2-9 months for 1st convictions and between 9 – 24 months for 2nd convictions depending on the value of the goods and circumstances of the stealing. (see: State v Saukilagi [2005] FJHC 13; Ronald Vikash Singh v State HAA 035 of 2002)

8. The offending in this case cannot be regarded as a simple theft matter. The courts have always viewed livestock and crop or farm theft as serious because of the public interest factor involved. Most farmers rely on livestock and crops to support and improve their livelihood. Thus the court will not deal leniently with those engaging in livestock, crop or farm theft.
   
9. His Lordship Judge Goundar stated in the recent Labasa case of State v Filipe Ratusuka & 8 Others Criminal Appeal No. HAA001/2013, at paragraph 17 "Farm theft is considered a serious offence because of the value that the commodities bring to the farmer and the community. For this reason, theft of cattle, goats, livestock and root crops from farming community is usually punished by custodial sentences to deter the offenders and others from engaging in this type of conduct in the future (Sateo Tuta v State [2002] HAA 5/02B, Abdul Afiz v State [1990] HAA 0011 & 12/89S, Jone Naca v State HAA016/-02S, Penisoni Waqa v State [2004] HAA 101/04L)."
   
10. In considering the circumstances of the offending in this case, I take a starting point of 18 months.
    
11. For the aggravating factors I increase your sentence by 2 months. Your sentence is now 20 months imprisonment.
    
12. For your guilty plea I reduce your sentence by 4 months imprisonment and this being your first offence and other mitigation I further reduce your sentence by 4 months. Your final sentence is now 12 months.
    
13. I now consider whether to suspend your sentence. You've a first offender and remorseful for your actions. You also informed the Court that you could restitute the complainant for the loss. The issue here is not just restitution. As was stated by Justice Shameem (as she was then) in the case of State v Jocelyn Deo Criminal Appeal No. HAA008 of 2005S at page 4 paragraph 1 lines 15 - 18 "The issue is not just restitution. The issue is true and sincere remorse, an early guilty plea and confession, and restitution to the victim as evidence of such remorse and apology." In your case although you have indicated that you can restitute the complainant, there is nothing to show that you've restituted something back to the complainant. You also pleaded guilty late and that was on the hearing date. As the court sees it your offer to restitute the complainant is not an indication of sincere or genuine remorse on your part. It is a calculated attempt to buy your way out of prison.
    

Further as Filipe Ratusuka & Others (supra) clearly suggests, this type of offending clearly calls for an immediate custodial sentence. There is no exceptional or compelling circumstance to suspend your sentence. Similar offending is prevalent in community and the Court needs to send out a clear message that it will not deal leniently with those having similar impulses.

14. Your sentence will not be suspended. You will serve an immediate prison term of 12 months.
    
15. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

23rd October 2013